State v. Hardman
| Decision Date | 15 August 1989 |
| Docket Number | No. 83A04-8901-CR-5,83A04-8901-CR-5 |
| Citation | 542 N.E.2d 230 |
| Parties | STATE of Indiana, Appellant (Plaintiff Below), v. Robert M. HARDMAN, Appellee (Defendant Below). |
| Court | Indiana Appellate Court |
Linley E. Pearson, Atty. Gen., Gary Damon Secrest, Deputy Atty. Gen., Indianapolis, for appellant.
Malcolm H. Aukerman, Newport, for appellee.
The State of Indiana appeals the trial court's sua sponte order dismissing the speeding charge against the defendant, Robert M. Hardman.
We affirm.
Whether the trial court erred when it dismissed a traffic charge based on the State's failure to request leave of court and failure to give the defendant notice when the traffic ticket was notarized after the ticket had been filed with the clerk of the court but before the trial commenced?
On July 17, 1987, Trooper Michael Capicik issued a speeding ticket to the defendant, Robert Hardman, and in addition, charged the defendant with driving while suspended, driving while intoxicated, and refusing a breath test.
At the scene, Capicik completed a uniform traffic ticket for speeding and signed it where indicated. Capicik gave Hardman a copy of the ticket at the scene.
The probable cause affidavit and copies of the tickets were given to the clerk by someone other than Capicik on or before July 21, 1987. The speeding ticket remained in ticket form, i.e., it was not reformulated into a long-form information.
Because Capicik had not personally filed the speeding ticket with the clerk, the notarization or jurat was not filled out and remained blank until the day of trial.
The trial was scheduled to begin on December 7, 1987, a Monday. On the previous Friday, the prosecuting attorney's office informed Capicik that he would need to acknowledge his signature on the ticket in order for the clerk to notarize it. This was done around 8:15 a.m., the day of trial.
The notarized ticket bears the date November 7, 1987, not December 7, 1987, which is the day Capicik testified that he acknowledged the signature and the clerk notarized it.
After opening statements, the defense filed a renewed motion to dismiss charges. After the prosecutor, Mr. Thomas, mentioned the traffic ticket had a jurat attached (which had been notarized by the court clerk), the defense stated that the jurat was not there "this morning."
The judge then asked Mr. Thomas, "When was [the jurat] put on [the ticket]?" Mr. Thomas, stated, "I believe she shows the date on here, does she not." Court's response: Then, Mr. Thomas responded, The judge then dismissed the speeding charge.
The order book entry dated December 7, 1987 does not reflect that the court heard argument on the motion to dismiss charges, which the defendant renewed after the opening statements, and subsequently dismissed the speeding ticket. However, an entry dated December 30, 1987 does reflect that the court made a nunc pro tunc entry (but not a nunc pro tunc order) 1 to show its sua sponte dismissal of the speeding ticket. The transcript of the proceedings shows that the court dismissed only the speeding ticket and not all of the charges, as the defendant's motion to dismiss charges requested. The transcript and the entry indicate that the judge sua sponte dismissed the speeding ticket.
IND.CODE 9-4-1-127.1(b) defines a violation of I.C. 9-4-1-57(b)(2) as a Class C infraction. The action is civil in nature, therefore Indiana Rules of Trial Procedure apply. I.C. 34-4-32-1(c)(1); Terpstra v. State (1988), Ind.App., 529 N.E.2d 839, 841, reh. den. Dec. 15, 1988.
In certain situations, a judge may dismiss a civil action sua sponte, as Judge Darnell did here. Even though the judge did not specify on which rule he predicated his dismissal, we find authority for the dismissal in the Ind.Rules of Procedure, Trial Rule 41(E), which states, "[w]henever there has been a failure to comply with [the trial] rules ..., the court, on motion of a party or on its own motion shall order a hearing for the purposing of dismissing such case." In the instant case, either a motion by the court or by a party to dismiss is applicable. Hardman made a motion to dismiss the traffic charge, and before the judge stated his ruling on the motion, he dismissed the charge. Without so stating, the judge's dismissal of the charge could be seen as a de facto ruling on the 41(E) motion, or the judge may have merely made the dismissal on "its own motion," as also allowed by T.R. 41(E). Either way, the mandatory hearing occurred between the opening arguments and the dismissal, even though the record may not...
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...avail themselves of the T.R. 41(E) remedy whenever the State fails to meet this requirement of due diligence.”); State v. Hardman, 542 N.E.2d 230, 231 (Ind.Ct.App.1989) (allegation of Class C infraction speeding); State ex rel. Murray v. Heithecker's Estate, 167 Ind.App. 156, 157–58, 338 N.......
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...would have enabled the State to correct the defect before trial through a motion to amend under Ind. Trial Rule 15. State v. Hardman, 542 N.E.2d 230 (Ind.Ct.App.1989), trans. Nor was Kirts prejudiced by the missing signature. The record reveals that Kirts was not in any way misled as to the......
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